MANHATTAN (CN) - In a case that might forever change attribution in the Digital Age, the 2nd Circuit asked Nevada's highest court on Friday to decide whether linking to an accurately reported story is enough to dodge a defamation suit.
Republican billionaire Sheldon Adelson raised the challenge over a petition that the National Jewish Democratic Council (NJDC) sent out during the last presidential elections two years ago.
The NJDC's petition urged then-candidate Mitt Romney to shun money from Adelson because of allegations that the casino magnate put "foreign money" from China in elections and allowed prostitution in his casino in Macao.
The petition quoted the material from a fired Sands executive's deposition against Adelson, the Forbes-ranked 10th richest person in the world.
Except for a hyperlink to the Associated Press story where this deposition was accurately reported, however, the NJDC's petition had no attribution for the testimony. It also left out the part of the article in which Adelson denied the allegations as a "reprehensible" attack.
Adelson sued the NJDC, its president and its chairman in Manhattan, and appealed to the 2nd Circuit earlier this year after U.S. District Judge Paul Oetken sanctioned him for violating Nevada's anti-SLAPP statute, which prohibits "strategic lawsuits against public participation."
Though Oetken equated hyperlinks to a 21st century "footnote," Adelson's attorney urged the federal appeals panel to have the Nevada Supreme Court decide whether publishers need more than a "naked hyperlink" for such a shield.
Back in August, Oetken's finding met with skepticism from the 2nd Circuit.
The Friday order by Judge Guido Calabresi punting the case to the Nevada Supreme Court asks two questions:
"First, does a hyperlink to source material about judicial proceedings in an online petition suffice for purposes of applying the common law fair report privilege?
"Second," does Nevada's anti-SLAPP law "cover speech that seeks to influence an election but that is not addressed to a government agency?"
Judges Reena Raggi and Denny Chin were also on the panel.
The NJDC's lawyer noted that must Nevada could decide not to take up the case.
If it does, the NJDC is nevertheless "confident" that Nevada "will agree with Judge Oetken," said Lee Levine, a Washington-based partner of the firm Levine Sullivan Koch & Schulz.
Adelson's lawyers did not respond to a request for comment.
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